Walmart bias case in spotlight

WASHINGTON - Like the retail behemoth at its center, everything about the Supreme Court extravaganza known as Walmart vs. Dukes is super-sized.

The number of women who could be included in the sex-discrimination class-action suit is measured in millions. The amount of damages for which the nation's largest private employer could be liable is estimated in billions.

If the U.S. Supreme Court agrees the case can move forward, it would be the largest employment-discrimination class-action suit in American history. As Walmart likes to point out, the suit could include more people than the number now serving in the Army, Navy, Air Force, Marines and Coast Guard combined.

Oral arguments are scheduled for Tuesday.

The prospect of such a massive lawsuit or, alternatively, a ruling that hobbles workers from mounting class-action suits against large, national employers, has drawn an outpouring of competing briefs from corporate America and the nation's leading civil-rights groups.

The suit, filed by six female Walmart employees in 2001, also will spotlight two intriguing story lines about the Supreme Court.

One is the perception, reinforced by President Barack Obama, congressional Democrats and civil-rights groups, that the court is overly protective of the corporate world.

There is evidence to support the claim as well as exceptions, but there seems little doubt about how a ruling for Walmart would be portrayed by liberal groups already suspicious of the court and the huge company.

Also notable is that the case - featuring charges by women of unequal pay, sexist remarks and insurmountable obstacles to promotion - arrives at a court whose membership for the first time is one-third female.

Justice Ruth Bader Ginsburg, 78, the oldest member of the court, made her career advancing the rights of women and challenging laws that treated the sexes differently. She has been joined by fellow Democratic nominees Sonia Sotomayor and Elena Kagan.

"The mere presence of three female justices on a previously male-dominated bench gives the plaintiff's side a symbolic boost," said Barbara Perry, who studies the court at the University of Virginia's Miller Center of Public Affairs.

Referring to the Walmart greeter who is the lead plaintiff in the case, Perry added, "The more women on the bench, the more likely Betty Dukes' story of discrimination will resonate."

That said, Perry also noted that the court is not deciding whether Walmart is guilty of discrimination. Instead, it will decide whether the small group of plaintiffs have satisfied federal class-action rules, allowing them to stand for co-workers nationwide who they say have suffered under common discriminatory practices.

The class would include all women who have worked at Walmart since 1998.

A federal judge in San Francisco ruled that they had. The plaintiffs' attorney, Brad Seligman, a class-action specialist at the Impact Fund, a tiny public-interest law firm in Berkeley, Calif., assembled statistics showing that women constitute 80 percent of hourly Walmart workers but hold only a third of managerial jobs. The percentage decreases on each step up the company hierarchy.

There were allegations of pay disparities between men and women; a lack of job postings, keeping women from career advancement; and a generally hostile work environment for women.

Affidavits from more than 100 female workers brought stories of women being called "Janey Qs" and being told that men were paid more because they had families to support, as well as a worker's complaint that her male manager told her to "doll up."

Seligman said that although pay and promotion decisions are made at the local level, they reflect an attitude from the top.

"Walmart has a very in-depth training program, very careful corporate oversight, a strong corporate culture, all designed to ensure a uniformity in decision making," he said in a recent interview.

Walmart responds in its brief to the court that because the plaintiffs cannot prove the company has a doctrine of discrimination - indeed, it has a specific policy of non-discrimination - "plaintiffs premised their motion on statistics, sociology, and anecdotes."

At the time of the district judge's decision in 2004, the company's retail operation included seven divisions, 41 regions, 3,400 stories and more than 1 million employees.

"The named plaintiffs' claims cannot conceivably be typical of the claims of the strangers they seek to represent," Walmart said.